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When you are charged with an offence by the police, they are
required to be able to prove that charge “beyond reasonable
Under the common law tradition, it is not the responsibility of
the accused person to prove his or her innocence; in other words,
the onus of proof” never rests with the defence.
Rather, the prosecution is required to prove all elements (or
ingredients) of the alleged offence to a standard of proof known as
beyond any reasonable doubt.
The defendant, on the other hand, is presumed to be innocent
until and unless the prosecution is able to discharge its onus of
proving guilt beyond reasonable doubt in a court of law.
So, what does all this mean?
What is a standard of proof?
The standard of proof is the degree to which a decision-maker is
convinced that an offence has occurred; a decision-maker including
a magistrate in the Local Court, or a jury or judge-alone
judge-alone trials or cases) in a higher court such as the
District or Supreme Court.
In civil law matters, which include cases where individuals or
companies commence proceedings against others for damages,
compensation and the like, the standard of proof is “on the
balance of probabilities”.
This means the decision-maker must be convinced it is more
likely than not that the person making the claim – such as
the applicant or plaintiff – has established its case.
Expressed in another way, it means the case has been established
by more than 50%.
This civil law standard of proof is embodied in
section 140 of the Evidence Act 1995 (NSW).
Criminal cases are where the state prosecutes an individual or
company for a criminal offence, such as an assault, drug offence,
theft or the like.
In these cases, the standard of proof is beyond reasonable
This standard is higher than the civil law standard of proof as
it is an attempt to both rectify the unequal power imbalance
between the state and an individual as well to reflect the
seriousness of the consequent loss of liberty if found guilty (as
opposed to mere monetary cost in civil cases).
But the courts have made clear that phrase ‘beyond
reasonable doubt’ is to be understood only by its ordinary
meaning, not by any codified test, whether based on separate
criteria or not.
The Honourable Justice Newman in the Court of Criminal Appeal
case R v GWB  NSWCCA 410 said at  that:
“judges should not depart from the time honoured
formula that the words ‘beyond reasonable doubt’ are words
in the ordinary English usage and mean exactly what they
Although the prosecution must always prove each element of their
case beyond reasonable doubt, the defendant might make a positive
case in their defence – that what is alleged happened
differently or had a legal justification, for instance that an act
of violence was in self-defence.
If the defence raise a case they must prove, it is to the lower
standard of on the balance of probabilities.
These criminal law standard of proof is embodied
in section 141 of the Evidence Act
Where does the standard of proof come from?
Our legal system is based on the presumption of innocence.
Again, this means that a person accused of a crime is presumed
to be innocent of that crime until and unless that person is found
guilty in a court of law.
This presumption has become an essential part of our system of
justice to ensure fairness.
Roman law had the maxim ei incumbit probatio qui dicit,
non qui negat or “proof lies on him who says, not
on him who denies”.
The concept also can be found in the traditions of Jewish and
Islamic religious laws. This concept was brought into the English
common law in the early Renaissance through influence from the
Catholic Church and its canon law, which is based on the ancient
In 1791, the concept was pithily phrased by the barrister Sir
William Garrow as “presumed innocent until proven
guilty”. This statement ties together the two key legal
concepts of the presumption of innocence and the burden of proof;
accordingly it has since become known as the ‘
William Blackstone writing on English laws a generation before
Garrow stated the philosophy that underpins both the presumption of
innocence and the burden of proof being beyond reasonable doubt:
“It is better that ten guilty persons escape than that one
The United Nations has also enshrined the importance of the
presumption of innocence and burden of proof in international law
under Article 14 of the International Covenant on Civil and
Who decides if a charge has been proven beyond reasonable
In criminal law cases, most matters are resolved in the Local
Court, which is termed “summary prosecution” in legal
The Local Court is presided over by a Magistrate, who is a local
court judicial decision maker. This is an independent legal
professional who oversees local court matters at all stages, from
beginning to end. In cases being decided by the local court at
hearing, the Magistrate is the decision-maker for both questions of
fact and questions of law.
More serious cases are dealt with “on indictment”,
which escalates the matter to the District Court and entitles the
defendant to a trial by jury.
A jury trial means that the jury are the decision-makers for
questions of fact, while questions of law are decided by a District
However, in certain cases a defendant can forego their right to
a jury in favour of a judge-alone trial, where the judge is
decision-maker for both questions of fact and questions of law,
like a Local Court Magistrate.
The most serious cases the indictment is dealt with in the
Supreme Court, in a trial by jury overseen by a Justice of the
Supreme Court. Similarly, in certain circumstances a defendant can
forego a jury in favour a judge-only trial presided over by a
Supreme Court Justice.
So, this decision as to whether a charge has been proven beyond
reasonable doubt is a matter for a magistrate, a judge, or jury
members to decide depending on the case.
Can an innocent person be found guilty?
Deciding whether an alleged offence is proven beyond reasonable
doubt is a subjective decision, about which reasonable minds may
Both the defence and the prosecution can be unhappy about a
decision made and there is recourse to appeal that decision to a
This means the hearing or trial will be reviewed and the judge
will assess whether there was or was not reasonable doubt.
The most recent high-profile case on reasonable doubt was the
decision of the full bench of the High Court of Australia in the
case of Pell v
The Queen  HCA 12.
The key issue in the case was that, to quote the judgment
“the jury had assessed the complainant’s evidence
as thoroughly credible and reliable, the evidence of the
opportunity witnesses nonetheless required the jury, acting
rationally, to have entertained a reasonable doubt as to the
applicant’s guilt in relation to the offences.”
But it is indicative of how difficult this question can be to
answer that it first went through the Chief Judge and a jury in the
County Court of Victoria, and then before three justices on appeal
to the Court of Appeal of the Supreme Court of Victoria.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.